Appeals Court Bans Prayer 'in Jesus' name'

Thu Jul 24 14:32:28 PDT 2008

If I am reading Professor Esenberg's post correctly (and I am not sure that I am) he seems to be saying that government can never avoid speaking religiously. If that is his point, a lot depends on how one defines"speaking religiously." If speaking religiously includes saying anything that will "either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant," he is probably correct that government can seldom avoid speaking religiously -- but that is an extremely broad understanding of religion for constitutional purposes. Most of us do not think that government acts religiously whenever its decisions will "either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant." (I may be quite annoyed if my son's public school only offers ham and cheese sandwiches at the cafeteria for lunch, but I would not characterize that conduct as acting religiously.) Indeed, it is hard to imagine how the religion clauses can operate meaningfully -- if we are not willing to draw some lines that limit their scope, such as a line between ethics and moral principles that resonate with, or are derived, from religion and worship, ritual, prayer, and denominationally distinct answers to questions about the nature of G-d.

I certainly agree that religion clause jurisprudence represents compromises among competing constitutional values -- and that these compromises can never be entirely free from costs.

Still, prohibiting prayer (sectarian or otherwise) at a city council meeting, where the governing body typically engages in both legislative and administrative functions and individuals often ask the council directly to exercise power on issues that may impact a very small class or even a single person, should be an easy case. Under an endorsement test or a coercion test, government prayer in this context should be unconstitutional.

Alan Brownstein
UC Davis School of Law

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Esenberg, Richard
Sent: Thursday, July 24, 2008 12:54 PM
To: Law & Religion issues for Law Academics
Subject: RE: Appeals Court Bans Prayer 'in Jesus' name'

 I agree with Professor Gibson that faithful Christians can pray without invoking the name of Jesus and with Professor Lund that this seems like the correct result under existing law (even Justice Scalia might agee) and I appreciate Professor Laycock's invocation of the great Alexander Bickel.

Wrong answers is what the wrong questions beget,

One of my favorite phrases. But I wonder if the right question is whether government, as we know it in the 21st  century, ever can avoid speaking religiously. While the monument questions don't put the question in the starkest form, the more things on which government chooses to speak, the more likely it is to either contradict some group's strongly held religious belief or minimize them by treating them as irrelevant. Government can, of course, avoid speaking in expressly sectarian terms, but the idea that this avoids (or even softens) the religious insult seems empirically wrong and rooted in a view of what religion is and where it ought to be allowed that is itself not religiously neutral.

Maybe that resolution - itself a very liberal protestant denouement - is the best we can do, although the idea that this has resulted in less division and more liberty is not self evidently true.

But, then again, perhaps we ought to ask again if allowing a prayer in Jesus' name really ought to constitute an establishment of religion.

Rick Esenberg
Visiting Assistant Professor of Law
Marquette University Law School
Sensenbrenner Hall
1103 W. Wisconsin Avenue
Milwaukee, Wisconsin 53201
(o) 414-288-6908
(m)414-213-3957
richard.esenberg at marquette.edu
________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock [laycockd at umich.edu]
Sent: Wednesday, July 23, 2008 7:15 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Appeals Court Bans Prayer 'in Jesus' name'

Well actually, the court of appeals did not ban prayer in Jesus' name.  Nor did the City of Fredericksburg ban prayer in Jesus' name.  Prayer in Jesus' name is continuing all over the city.  The City said it would not sponsor prayer in Jesus' name; if anything was "banned," it was only at official city functions where the City controlled the agenda and thus controlled whether there would be a prayer at all.

I agree that this is a very awkward decision.  But it is the inevitable result once we start down the path of allowing government-sponsored prayers.  Wrong answers is what the wrong questions beget, and when the answer is that the best solution is to restrict the religious content of prayers, the system has asked the wrong question.  The only way to fix this is to reconsider Marsh v. Chambers.

Quoting Gordon James Klingenschmitt <chaplaingate at yahoo.com>:

> Press release below.   Please forward widely.   Please call for interviews!
> In Jesus,
> Chaplain K.
> ------------------------
>
>       Appeals Court Bans Prayer 'In Jesus' Name'
>
> Contact: Chaplain Klingenschmitt, www.PrayInJesusName.org,
> 719-360-5132 cell, chaplaingate at yahoo.com
>
> WASHINGTON, July 23 /Christian Newswire/ -- The Fourth Circuit Court
> of Appeals today ruled that the city council of Fredericksburg,
> Virginia had proper authority to require "non-sectarian" prayer
> content and exclude council-member Rev. Hashmel Turner from the
> prayer rotation because he prayed "in Jesus' name."
>
> Former Supreme Court Justice Sandra Day O'Connor, writing the decision, said:
> "The restriction that prayers be nonsectarian in nature is designed
> to make the prayers accessible to people who come from a variety of
> backgrounds, not to exclude or disparage a particular faith."
>
> Ironically, she admitted Turner was excluded from participating
> solely because of the Christian content of his prayer.
>
> A full text copy of the decision, with added commentary by Chaplain
> Klingenschmitt is here:
> www.PrayInJesusName.org/Frenzy13/AgainstOconnor.pdf
>
> Gordon James Klingenschmitt, the former Navy chaplain who faced
> court-martial for praying "in Jesus name" in uniform (but won the
> victory in Congress for other chaplains), defended Rev. Hashmel
> Turner:
>
> "The Fredericksburg government violated everybody's rights by
> establishing a non-sectarian religion, and requiring all prayers
> conform, or face punishment of exclusion. Justice O'Connor showed her
> liberal colors today, by declaring the word 'Jesus' as illegal
> religious speech, which can be banned by any council who wishes to
> ignore the First Amendment as she did. Councilman Rev. Hashmel Turner
> should run for mayor, fire the other council-members, and re-write
> the prayer policy. And if he appeals to the Supreme Court, I pray he
> will win, in Jesus' name."
>
> For media interviews, call:
> Chaplain Klingenschmitt 719-360-5132 cell
> Email: chaplaingate at yahoo.com
> Web address: www.PrayInJesusName.org
>
>
>
> Source:
> http://christiannewswire.com/news/558917273.html
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.